Proceedings in the fiction. Part 2

Sometimes an occupation rent is set on the estate, deducting interest on the deposit (i) : where a yearly tenant in possession filed a bill claiming an option to purchase, the Court would only restrain an ejectment by the landlord on the terms of the tenant continuing to pay the rent, without prejudice (k).

Occupation rent set on estate.

It must be borne in mind that a public body which has statutory powers of purchase must comply strictly with the statutory conditions, or it will be in no better position than a private individual. Thus, where the Metropolitan Board of Works, instead of proceeding under the L. C. C. Act, contracted for the purchase of property, and then refused to complete without abatement of the price agreed upon, the Court of Appeal refused to give them possession before completion, treating the case as an ordinary contract between vendor and purchaser (/).

Public body, unless proceeding under its statutory-powers, is treated as ordinary purchaser.

A purchaser in possession, even under the contract, who has not paid his purchase-money, may be restrained on motion from waste or destruction of the property; e.g., from felling timber (m) ; so the vendor may, under special circumstances, as where he has given up possession and received part of the purchase-money (n), he restrained from conveying away the legal estate, or contracting to re-sell the property (o) : but it has been said that, in general, in a suit by the purchaser for specific performance he is not entitled to restrain the owner from dealing with his property, as a different doctrine would operate to control the rights of ownership, although the agreement were such as could not be performed (p). However, in a later case, the authority of this dictum as a general statement of the law was questioned ; and the rule of the Court was stated to be, that if there is a clear valid contract for sale, the Court will not permit the vendor afterwards to transfer the legal estate to a third person, even although such third person may be affected with notice of the lis pendens; but where the validity of the contract is open to question, or the issue of a suit for specific performance of it is doubtful, it then becomes a question of comparative convenience or inconvenience whether the vendor shall, or shall not, be allowed to transfer the estate to a third party (q). After the relation of vendor and purchaser has determined by the execution of the conveyance, the Court has no jurisdiction, at the suit of the purchaser, to restrain the vendor from interfering with the property, e.g., by vexatiously distraining on the tenants (r).

In an action to enforce an agreement for sale of a next presentation, the vendor may be restrained from presenting any clerk not nominated by the purchaser; and the injunction has even been extended so as to restrain the Bishop from presenting, except on the like nomination, or from collating in the event of a lapse pending the action (s).

Where the question of title is the only one in dispute, the Court, in order to save time (t), may, at the instance of either party, direct a reference (u) of the title before the hearing under Ord. XXXIII. r. 2 or Ord. XXXII. r. 6. It is the duty of the vendor, in such a case, to get the inquiry as to title directed as early as possible (.r).

Reference of title before hearing.

Thus, the Court in one case refused a motion for reference of title by a plaintiff vendor, who, for eleven months after answer, had taken no proceedings in the suit (y).

Order refused on ground of delay ;

And, of course, no reference will be directed even at the hearing, if the Court be satisfied that the purchaser has intentionally waived his right to investigate the title (z) : and it has also been refused on the mere ground of long possession and vexatious objections on the part of the purchaser (a). So, an admission by the purchaser in his answer to the suit, that at the date of the contract the vendor was "entitled " to the subject-matter, has been held to be an acceptance of the title which precludes him from insisting on a reference (b).